A plaintiff’s First
Amendment-based retaliatory prosecution and false arrest claims against two
Upland police officers may go forward to trial, the Ninth Circuit Court of
Appeals held yesterday.

Reversing the district
court’s grant of summary judgment in favor of the officers, the judges
concluded that a San Bernardino prosecutor’s decision to file a criminal
complaint against Kenneth Beck despite what the plaintiff says is a lack of
probable cause did not shield the officers from liability.

According to Beck’s
complaint, after the City of Upland granted a no-bid public works contract to
an out-of-town competitor of Beck’s business, Dineen Trucking, Beck openly
voiced his suspicions that there were irregularities in the contracting
process. Shortly thereafter, three city officials served Beck with a notice of
zoning violations, signed by Upland Police Chief Martin Thouvenell.

The next week, Beck
claims, he approached Thouvenell and Sgt. Jeff Mendenhall at a social function
and a brief, heated discussion ensued during which Thouvenell allegedly said
“we should have taken care of you a long time ago.”

Beck retorted with a
version of the statement: “You don’t know who you’re dealing with,” which ended
the conversation.

Both officers later
declared that they believed Beck was threatening their “position or employment”
as police officers in violation of Penal Code Sec. 69. Mendenhall prepared a
police report on the incident and presented a report to the District Attorney’s
Office which omitted Thouvenell’s alleged statement to Beck.

Felony Complaint

San Bernardino Deputy
District Attorney Joseph Gaetano reviewed the report and generated a felony
criminal complaint against Beck. While being deposed, Gaetano asserted the
work-product privilege when asked whether he felt any “pressure” to file
charges against Beck.

The criminal charges
were later set aside, and a few months later, Upland dismissed the zoning
charges against Beck as well. Beck then filed suit pursuant to 42 U.S.C.
Sec.1983, but District Judge Audrey B. Collins of the Central District of
California concluded Gaetano’s decision to prepare the criminal complaint was a
superceding independent action which immunized the defendants from liability
for Beck’s arrest and detention.

Citing Hartman v.
Moore, (2006) 547 U.S. 250, she explained that for First Amendment
retaliatory prosecution cases, if a plaintiff can prove that the officers who
secured his arrest or prosecution lacked probable cause and were motivated by
retaliation against the plaintiff’s protected speech, the plaintiff’s suit can
go forward.

“Proof of the absence of
probable cause, it appears, is the sole factor necessary [under Hartman],” Berzon
wrote. “Applying that reasoning, it could be held that that sole factor would
also be sufficient in the Fourth Amendment false arrest context,” she suggested
because the question of causation is “essentially identical” in both contexts.

However, Berzon
continued, Hartman did not involve a Fourth Amendment-based cause of action,
and therefore she reasoned Smiddy v.Varney, (9th Cir. 1981) 665 F.2d 261
applies to any other constitutional tort case, including Fourth-Amendment based
claims.

Evidentiary Presumption

Smiddy provides an evidentiary
presumption that a prosecutor filing a criminal complaint exercised independent
judgment in determining the existence of probable cause for an arrest, which
immunizes investigating officers from any post-complaint damages, Berzon
explained.

Noting that Sec. 69 only
criminalizes threats of unlawful violence used in an attempt to deter an
officer from his duties, Berzon concluded that Beck’s statement could not have
been understood to threaten violence, and therefore, probable cause did not
support his arrest.

Berzon also concluded
the issue of retaliation was litigated in the district court because Beck’s
complaint had argued that the officers were motivated be retaliatory animus to
create a false case against him. Based on the record, Berzon said a rational
jury could find that Beck’s arrest was based on personal retaliatory animus.

Because Gaetano invoked
privilege to shield relevant evidence concerning his decision to prosecute,
Berzon reasoned Beck could not be required to come forward with evidence to
rebut the presumption of Gaetano’s independent judgment and upon shifting the
burden to the officers, she concluded a reasonable jury could find the officers
did not satisfy this burden of proof.

Senior District Court
Judge James K. Singleton of the District of Alaska, sitting by designation,
joined Berzon in her opinion. Justice Sandra S. Ikuta concurred in part and
dissented in part.

Opinion Criticized

Ikuta criticized
Berzon’s opinion for resolving the issue of retaliatory intent and whether Smiddy
immunized the officers from liability under Beck’s Fourth Amendment false
arrest claim. These issues, Ikuta argued, involved mixed issues of law and fact
which were inappropriate for the court to address for the first time on appeal
in the absence of development by the parties or a ruling by the district court.

Beck’s appellate
attorney Thomas R. Freeman of Bird, Marella, Boxer, Wolpert, Nessim, Drooks,
& Lincenberg, P.C. said his client was very pleased with the decision.
Although the opinion was “very technical,” he said, “we didn’t win on a
technicality, we won on two separate grounds.”

Defense counsel Samuel
J. Wells said the case turned on “one little peculiarity.” He suggested that
the case might have been decided differently if Gaetano had not asserted the
work-product privilege, and opined that the case may be terminated again if
Gaetano testifies that he did not feel pressured to file the case.